Article Tools

In the continuing debates on proposed methods of gun control the focus has largely revolved around the Second Amendment and the last interpretation given it by the Supreme Court. The Second Amendment is not lengthy, seemingly granting a fundamental right to buy and own guns. Many of the gun control laws passed by states and local authorities are now under assault because of the very expansive ruling by the Court on the Second Amendment. Overlooked in this debate is a very important element in the Constitution, namely Article I, Section 8, paragraph 16.

That paragraph grants to Congress the express power to provide for authorizing and funding state militias, whose officers are appointed by the respective states. It seems clear that these militias envisioned by the Constitution are presently the state national guards. These guards can be called up to serve the national interest in times of insurrection and rebellion. In addition, we now employ these guards to serve in emergencies as quasi-police and deliverers of aid.

There is only one qualification stated in the Second Amendment and it refers to a well regulated militia being necessary to the security of the nation. It seems that the militia being referred to in this qualification is the same as that envisioned in the body of the Constitution. How then do we interpret the substantive element in the Second Amendment which provides for an unabridged right to bear arms?

Arve Sjovold

Number 29 of the Federalist Papers by Hamilton makes a case for the necessity of having state militias as a balance on the federal executive, who is the commander-in-chief for defense of the nation. The founders rightly feared having a standing army at the behest of the commander-in-chief. However, the Cold War breached that constraint by requiring immense power in the commander-in-chief in order to respond in very short time to any threat of a nuclear attack by an adversary, when there would be no time to convene Congress, so we now have a standing army. And that of course is why we are always troubled by how wartime powers are executed.

Number 29 goes on at length on this theme and nowhere mentions the necessity of citizens having guns as an individual protection against their own government by allowing its citizens to buy and keep weapons of a military nature. And it would be folly for a founding document such as the Constitution to provide the such a seed for its own demise. It becomes abundantly clear, upon reading the founders concerns regarding military power and its use, that a different interpretation of the Constitution can be drawn about the power of the federal government to regulate guns.

A very logical conclusion drawn from the Constitution gives Congress the power to define and regulate all military weapons. This should include all assault weapons, rocket launchers, ammunition, and devices to deliver military power such as semi-automatic and automatic capabilities and large ammunition clips and other weapons of a military nature. Congress could pass legislation that would simply not allow any military weapons so defined to be held by individuals. This would leave individuals the clear right to own guns for sport and for home defense. Home defense weapons would therefore consist of handguns without large capacity clips and other simpler weapons. And Congress could also demand that gun sellers be held to these regulations.

Clearly it is not necessary to even go to the Second Amendment to establish the power to regulate guns in the fashion described above. Legislation to carry out such regulations should refer primarily to the power given Congress in Article I, Section 8, paragraph 16.

Comments

Wow Arve, thank goodness you have this all figured out...While you are at it go ahead and read the 3rd Amendment(hint-it is immediately after the 2nd Amendment) as well and then apply your conventional wisdom to your simplistic conclusion.

Hamilton tells us exactly what the founders mean by “well regulated”: “uniformity in the organization and discipline...tolerable expertness in military movements...to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia." If you cannot describe your militia like Hamilton then you are not protected by the second amendment.

Thanks ClayPilgrim. At least my personal militia meets your criteria so I can relax...Please provide simple explanations for each of the other problematic and pesky amendments; feel free to start with free speech, or the right to privacy, or heck, take your pick...

You're right about that bc. I'd be happy for the Supremes to read the first half of the 2nd as well as the latter part and rule accordingly. Ya know, until Heller, the 2nd was interpreted in a sane manner.

I'm always amused when I read someone stating that the second Amendment is clear as day (and that they have the definitive correct intepretation).

I don't know myself, but a little research shows its meaning has been heavily debated for a long time by Constitutional scholars, historians, politicians, etc. Even the meaning of a single word ("militia") is up for grabs.

Now that I've solved 11/22/63, it seems the 2nd Amendement may contradict itself. Then again, those who wrote it (many of them anyway) talked about all men (gender exclusion noted) being equal, but were for owning slaves.

The subject letter is a welcome dose of ‘new’ information (to me anyway). It is clear that since WWI the 2nd amendment has been obsolete, but I didn't realize that, setting aside NRA-type hype and the associated uninformed political gibberish, the 2nd amendment is also essentially irrelevant to our gun ‘problem.’

“So the problem is guns? Can someone tell me why until recently (about the last 15 years) we didn't have this problem of mass shootings/schoolyard massacres?billclausen May 10, 2013 at 2:37 a.m. ”

Our ‘problem’ can’t be blamed on guns any more than alcohol can be blamed for drunk driving. And just like damage caused by drunks, mass killings due to people using guns are not a new phenomenon. In fact, mass killings go back much further than “about the last 15 years.”

Year killed/injured1863 1-3/18-201889 7-8/?1897 6/51900 7/20Etc to the present

The US has a gun problem relative to other relatively ‘civilized societies,’ but it’s essentially always had a gun problem. Even though the rate of gun deaths may be stable or even shrinking, we like to kill each other more than many other countries do.

Willy88 you are correct , let's take it one step further. Criminal syndicates already have a black market for weapons- they don't want them traced to begin with! But if people who are mentally unbalanced or emotionally distraught can be prevented from easily obtaining a gun (before they can be talked down or gather their emotions and act sanely) then I don't see the harm in background checks.There's been many stories shared here where a gun saved someone; we all know the stories of when the wrong people had guns as well. This isn't an issue which is decided in a black/white way but a sensible way which respects people's individuality without putting other people unnecessarily in danger.

Great discussion of the Second Amendment, Arve, Thanks. The establishment of state militias was an important issue in a country that had become independent from the British Empire in the recent past. I doubt that the founders would have considered any government control over privately-owned weapons that were basic tools used to obtain meat for carnivorous colonists as well as for defense against hungry creatures with the same intent. Guns were obviously used by the military and for personal defense, but I doubt that the founders' intent was to discuss personal possession of tools that were viewed most commonly as members of a class that included fishing poles, snares, and traps.

"Black dog man" on the Grassy Knoll has an awfully big nose. It's GOTTA be LBJ with his varmint rifle.

Re the Constitution, it's odd that the writer mentions the Constitution's demise. Should Americans just sit back peaceable & enjoy the spectacle of transition from republic to cui-bono empire? Not that armed revolt is the only fix! But why pull the fangs off the rattler? "Please tread on me?"

"Removing the right of law abiding people to have automatic weapons and high capacity clips will do and has done (where there are these laws already in place) nothing to reduce this type of violence."

Actually, I think you are mostly wrong in particular regards to the Newtown (Sandy Hook) shooting. The guns used (Bushmaster XM15-E2S rifle with a 30 round magazine, a 10mm Glock handgun, and a 9mm SIG Sauer P226--source, Wikipedia) were legally purchased and owned by the shooter's mother. If she had either been unable to purchase a Bushmaster and/or the large mag, then the damage caused may have been less or non-existent. I will concede, however, that limited capacity of individual magazines may not make much difference, should multiple ones be available for use, but a few seconds of reload time might have actually made a difference in the ability of someone to escape the immediate firezone.

Anyway, the point is, that disallowing the purchase of a military-spec weapon (colloquially, "assault rifle") may very well have saved lives, by preventing, or limiting, the ability/efficiency of the shooter.

Stretching the logic, it might even be possible to say that had the Bushmaster not been in the mother's collection, then perhaps the shooting would not have occurred at all--if one allows for the combination of the shooter's fondness of Call of Duty [military style video game--a First Person Shooter (FPS)], and his desire to use such a weapon, to be a motivational factor. [NOTE: I said "stretching the logic", and don't submit this as much more than unsupportable speculation.]

The Bushmaster used in the shooting is not a mil-spec weapon. It is a semi-automatic civilian version of a fully automatic military weapon. The anti-gun forces do themselves little good by constantly getting their facts wrong.

The shooter's mother is at least as guilty as her son in this horrible crime. She introduced him to guns, took him shooting, and left her guns accessible to him. And we've been told that he had "emotional issues". Whether she was a legal owner I can't recall, but she was certainly delinquent in her behavior. So a background check wouldn't have prevented this particular event. But background checks would help keep guns out of the wrong hands, if mental health and arrest records were available as part of the process, which I believe would require a modification to HIPAA.

But it's slippery slope between background checks and a national gun registry which would allow the gov, as happened in New Orleans after Katrina, to confiscate guns from legally registered owners thus leaving only the criminal element armed (brilliant move by the gov - I have family there who witnessed the fallout). True, the law as written today specifically forbids the gov from maintaining a national registry. But that is today and I for one do not trust our government, or people who believe that there can be a risk-free life, not to push for or create such a registry in the future. It's a dilemma.

I agree with you about the background checks not doing anything in the Sandy Hook case, but I was *specifically* addressing willy88's comment of, "Removing the right of law abiding people to have automatic weapons and high capacity clips...."---which is why I included the quote in the first case. (You are actually providing a strawman argument--although that term does get thrown around a lot, and I do not believe that it was purposefully intended by you, here.)

As for the Bushmaster being "military spec". I was basing the description on the cartridge, more so than the fully-automatic vs. semi-automatic. Your argument is technically correct, but I would submit that it makes little difference when open shooting into a crowd, or targeting children that are small, but not very fast<--apologies, if anyone finds it offensive to describe kids that way.

People are not allowed to own automatic weapons since 1934 except in rare cases when licensed directly by BATF.

To your point about ammunition, In one of these discussions, I suggested that regulating the type of ammo (specifically, eliminating the .223 used in AR-15 semiautomatic weapons) might make sense. Then I did some research on such things as muzzle energy, muzzle velocity, bullet weight, and found that the .223 is far from the most powerful cartridge available. Many common cartridges used for hunting exhibit significantly more (sorry) "kill power". And are available for semiautomatic weapons that bear no resemblance to the so-called "assault-type weapons" that so many people are afraid of.

As to shooting rapidly into a crowd, semiautomatic handguns exhibit exactly the same behavior as semiautomatic rifles (one shot per trigger pull), but with less muzzle velocity and less accuracy at distance. And handguns account for over 95% of gun crimes, while semiautomatic rifles account for a tiny fraction of the total crimes by rifle, ie a tiny fraction of 5%. So focusing on semi-automatic gun ownership is a great example of sitting on a whale while fishing for minnows.

Permitting based on felony history, mental health, etc is sensible, but again, I do not trust our government. Witness Benghazi, IRS, Justice Dept/AP news recently. All examples of incompetence or misbehavior by our gov. And now we hear that our own Lois Capps sees nothing wrong with using federal agencies to target groups or individuals. Scary. Be very afraid.

You are correct, about there being ammo with greater "kill power" per bullet, but there are other considerations for military use. Weight vs. number of backup rounds, for example. The physical force necessary to propel a larger round would equate to a less controllable weapon, in semi or full-auto mode.

I find the statistic which you quote at 95% (handguns over rifles) to be misleading. If "gun crime" includes non-shooting involved robberies, then that would have to come out of the mix....actually, all robberies probably would, as it seems that "gun crime" would have to be sub-categorized until one zoomed in on "massacres" or "shooting by crazy people". "Gun crime" may even technically include brandishing, which is another thing that would skew the statistic--it's too broad of a category from which to draw a useful statistic.

Now, in the case of the VT shooting, it was only handguns, but the rest used (primarily) rifles. I left out the Kent State massacre, where the National Guard used rifles, but that would not fall under my "crazy people" filter. :)

Your last argument, about not trusting the government is completely irrelevant to the gun aspect of the discussion. However, I'm glad that you do find certain controls "sensible". Furthermore, I do believe that there are some people--both governmental agents and among the "regular folk"--that believe in a complete ban of firearms, but I doubt anything that extreme could/would ever actually happen in the U.S., whether there are background checks for gun ownership, and/or a national registry.

I skimmed through the comments until I got to the very last - although I disagree about grammar and spelling (humour?), I DO think that non factual posts maybe should be subject to editing, if not removal. Example: Numerous mainstream media sources have admitted that NO .223 rifles (Bushmaster, or other makes) were EVER used in the Sandyhook "shootings". Intentional or not, I consider this propaganda.

And yes, I have big problems with Sandyhook - to preemptively explain, NOT A SINGLE FAMILY WAS ALLOWED TO VIEW THE BODY OF ANY OF THE CHILDREN THAT WERE SUPPOSEDLY KILLED!

(Just me personally, but if it were my child, God himself would not have been able to prervent me from confirming with my own eyes that she was in fact dead! What the @#$&@# has happened to this couintry that families no longer even have the right to confirm & claim their own dead relations?)

DrDan: By your comment you support my concern about government overreach.

equus: My comment about trusting government is quite relevant. It refers to the government's current "promise" not to create a national registry from the results of background checks. A promise I consider as questionable as any other promise given by the government.

I'm always concerned about tyranny and over-reaching by the government....lot of debate over what "over-reach" really means... equus is correct in stating that "not trusting the government is completely irrelevant to the gun aspect of the discussion. " John, you nearly always have distrust of government at the core of your position

DrDan, you are almost correct re my distrust of government - my distrust is of BIG government, BIG labor, BIG business, BIG anything. Just watch the current circus: everyone in IRS scrambling to cover their ass rather than openly disclose what was done and face justice, ditto for State Dept and Obama re Benghazi, and Obama says he supports the AP wiretaps that were obtained without a warrant. Hardly acts to inspire trust.

And, once again, not trusting the gov is not irrelevant to the gun debate, see my previous post. Given the above examples, one should perhaps rethink one's position of trusting government by default.

I don't hear your criticisms of Big Business, John. We're a huge country and Big may not always be open to reduction. Why am I not hearing you talk about the BIG banks and the travesties of "too big to fail" re these financial institutions? Benghazi is BS. The IRS jokers will be fired. The AP wiretaps are indeed inexcusable. You failed to bring up Big military and corporate socialism: what about the government's assassinations from drones of 4 (not 3) US citizens abroad...?

501(c)(4) applications to IRS has had only about 2 dozen denies in the last four years across tens of thousands. This is another Republican delay the Democrats' agenda like Benghazi: see http://www.publicintegrity.org/2013/0...

"...I DO think that non factual posts maybe should be subject to editing, if not removal. Example: Numerous mainstream media sources have admitted that NO .223 rifles (Bushmaster, or other makes) were EVER used in the Sandyhook "shootings". Intentional or not, I consider this propaganda."

You need to do more research, and maybe cite some sources. Wikipedia includes the Bushmaster in the page on the shooting, and if you consider that a dubious source, simply search on "weapons use at sandy hook". Results will include pages relating a denial by NBC that a Bushmaster was used, but one site (ijreview.com) has a Jan 15 article stating that, but a follow up on Jan 21, stating that was a mistake.

Adding "CNN" to the search terms yields a December article, which mentions the Bushmaster, along with a Sig-Sauer pistol, and a Glock pistol.

Or, you could go to "http://www.ct.gov/despp/cwp/view.asp?Q=517284" and view the press release from the Connecticut State Police (dated January 18, 2013):

"The shooter used the Bushmaster .223 to murder 20 children and six adults inside the school; he used a handgun to take his own life inside the school. No other weapons were used in this crime. This case remains under investigation."

It appears that *you* are the victim of propaganda, or possibly simple ignorance, which is excusable. Again, if you cited your sources it would at least show that you weren't merely providing an opinion without support.

I do agree with you, that--assuming it's true, as I did not research it--it's wrong that a family would not be allowed to identify their allegedly dead children. However, it's possible that they were simply not allowed to do so at the crime scene, but would later be called to id the bodies, post-autopsy. [Incidentally, this reminds me of the photograph ban on caskets returning from Iraq and Afghanistan (circa 1991). And, while photographers are not necessarily family members, it was a bs maneuver by the Federal admin at the time, IMO.]

What about Benghazi is BS? Do you know the facts? No. Nor do I. So let's get to them.

And BIG Government made the decision that BIG banks were too BIG to fail. Like I've said, repeatedly I DON"T TRUST BIG GOV TO DO THE RIGHT THING (excuse the megaphone). But there are many economists, hopefully smarter than you or I, who have argued that letting them fail would have been cataclysmic. My big issue is that the bailouts weren't accompanied by significant legal requirements that would result in no repeats.

so John you would support Sen. Elizabeth's Warren's efforts to regulate the financial industry (incl big banks)? As before, "Why am I not hearing you talk about the BIG banks and the travesties of "too big to fail" re these financial institutions?" Instead, you have this admitted lack of any trust in Big Government. OK, sure, Big military is part of Big government, but with the military-industrial complex dominating (as Ike said quite well) it's more that Big military/industry dominate government itself.

Before anyone can have a rational discussion about the 2cnd amendment, all parties MUST concede that the 'Bill of Rights' was intended to guarantee individual rights. Arguing about the right of states to have a "national guard" is a waste of time - that was NEVER the purpose of ANY amendment.

@howgreen: apparently you missed my point. Yes, I know the 5.56 is not the same as the .223. My point was that there are many cartridges more powerful than the 5.56 so that my original thought about limiting access to that ammo was misplaced. So other than listing practically every kind of commonly used ammo, what was the point in your extensive post?

DrDan, why not focus on debating issues instead of personalities for a change? The financial industry IS regulated. Mostly by people who are unable to understand what the financial industry is doing (e.g. derivatives) until too late. What is your point?

As to "too big to fail", I specifically addressed that in my last post to you.

Instead of trying to play "gotcha", why not read and think about content. Bye, now.

This confused me coupled with the comment at May 16, 2013 at 1:06 p.m.

"To your point about ammunition, In one of these discussions, I suggested that regulating the type of ammo (specifically, eliminating the .223 used in AR-15 semiautomatic weapons) might make sense. Then I did some research on such things as muzzle energy, muzzle velocity, bullet weight, and found that the .223 is far from the most powerful cartridge available. Many common cartridges used for hunting exhibit significantly more (sorry) "kill power". And are available for semiautomatic weapons that bear no resemblance to the so-called "assault-type weapons" that so many people are afraid of."

Mil-Spec does not include .223 Remington. To be correct the only Armalite 15 firearms that are Mil-Spec are Colt who owns the TDP, technical data package, and FN because they have access to the TDP and they are chambered in 5.56x45 NATO.

Mil-Spec and .223 Remington don't belong to each other.

Of all the other cartridges listed only 6.8 mm Remington SPC and 300 AAC Blackout (7.62×35mm) have been used in selective military units and are not Mil-Spec or adopted cartridges.

Both Colt, FN and a plethora of other manufactures make non Mil-Spec rifles based on the Armalite 15 chambered in all the flavors I listed but predominately 5.56x45 NATO not .223 Remington.

As I own a precision varmint, single shot-bolt action, rifle in .223 Remington, I wanted to clarify that banning specific cartridges is not a good idea and I am glad you realize this after research.

@JL, you always write this (from post above): "DrDan why not focus on debating issues instead of personalities for a change?"That makes no sense since my post above (May 28 @ 2:56 pm) has to do only with issues, which you consistently duck and throw up this transparent smokescreen. I ask you again, and step it up, John, do you "support Sen. Elizabeth's Warren's efforts to regulate the financial industry (incl big banks)? " You are incorrect in asserting the US financial industry is already regulated, and cavil that well it is but by idiots. Mebbe so on the idiots. But Clinton and the Repubs caused much of this mayhem, too big to fail, by ending Glass-Steagall, and there's much more in this vein. What about E. Warren? You do not respond to my comment that in essence you a sort of anarchist and hate all big government. You are the one getting more ad hominem and personal when you write, "instead of trying to play 'gotcha', why not read and think about content. Bye, now." Cute, and how just like you, and accusing others of what you do yourself when you don't have anything else. You have a great day, now.

"incorrect in asserting the US financial industry is already regulated"? Do your homework. I agree that ending Glass-Steagall was a huge mistake, as was eliminating the short-sale uptick rule, as was the policy of many Presidents to encourage home ownership by everyone whether or not they could afford it, as is current tax policy that encourages corporations to park their earnings outside the US. Given E Warren's statement that "The truth is that we could end those cuts and put a stop to sequestration right now if we just made big corporations, millionaires, and billionaires pay their fair share", I would have to consider her a polemicist and class warrior, similar to our President. I have not read the specifics of her proposal to add regulation to the financial industry, so cannot comment on it. I do believe that in general the US is overregulated and that the regulatory process is often conducted by people either incapable of understanding what they are regulating or people dedicated to driving a political agenda. Hence my ongoing distrust of big gov, which does not make me an anarchist. And your "comment that in essence you a sort of anarchist and hate all big government" is a perfect example of personalizing the discussion instead of focusing on issues. "Playing gotcha" is merely a comment on your obvious posting tactics.

The Bill of Rights was included in the constitution to guarantee individual rights - minutia regarding exactly which type of arm one should be allowed to bear, is bait for the gun nuts.

So I say again, the second amendment was NOT written to guarantee ANY state the right to form a "National Guard" - it's meant to insure citizens have the ability to resist government tyranny - any talk about "single shot muskets" is a bunch of delusional nonsense.

(And for the last time, Nancy Lanzas' Bushmaster rifle was found locked in the trunk of the car Adam Lanzas supposedly drove to Sandyhook school - this is fact borne out by video that was taken immediately after the shooting, so I couldn't care less what CNN, Wiki or anybody else has to say about it.)

"(And for the last time, Nancy Lanzas' Bushmaster rifle was found locked in the trunk of the car Adam Lanzas supposedly drove to Sandyhook school - this is fact borne out by video that was taken immediately after the shooting, so I couldn't care less what CNN, Wiki or anybody else has to say about it.)"

Then, your obstinance is clearly contributing to your ignorance. If you research "the video" (Idk which one, because you yet again fail to offer any kind of link or descriptive reference), you will find that a "viral" video was a hoax.

I rest my case, specifically leaving out further details, as they apparently don't matter.